In 2008, the Human Rights Codewas amended to allow, amongst
other things, civil claims for breaches of the Code.
Though we often see plaintiffs alleging discrimination in the
context of a wrongful dismissal or constructive dismissal claim, no
Ontario court has ever awarded damages under this section. Until
In Wilson v
Solis Mexican Foods Inc., Justice Grace found that Solis
Mexican Foods Inc. breached the Code when it terminated Patricia
Wilson's employment. As a Business Analyst, Wilson received a
satisfactory performance review. Shortly after her review, she
complained to her manager about back pain. Wilson's doctor
recommended that Wilson take an indefinite leave of absence. After
Solis reasonably asked for further information, Wilson's doctor
recommended a gradual return to full-time hours. In the interim,
Solis decided to restructure its business. On that basis, it
dismissed Wilson's employment without cause and paid her two
Wilson alleged that she was wrongfully dismissed and Solis
breached the Code. Justice Grace awarded Wilson three
months' reasonable notice. Further, he found that Solis failed
to accommodate her disability and that her disability was a
significant factor in its decision to terminate Wilson's
employment. Justice Grace awarded Wilson $20,000 in damages for
discrimination without referencing any cases from the Human Rights
Tribunal of Ontario. Justice Grace also held that Wilson is
"presumptively" entitled to her legal costs.
In our view, this decision is important for three reasons:
the decision provides a precedent for plaintiff's counsel
considering making a civil claim alleging discrimination (provided
the action is not based solely on a breach of the Code, which is
prohibited by section 46.1(2)) and may encourage similar claims,
especially because the plaintiff will be awarded her costs unlike
at the Human Rights Tribunal of Ontario;
though the court did not rely on the legal test used by the
Tribunal to fix the damages (the objective seriousness of the
conduct and the effect on the particular applicant who experienced
discrimination), the damages award is similar to disability
discrimination awards made by the Tribunal; and
Wilson did not ask for restitution or back wages (which the
Tribunal often awards) and, as such, Justice Grace employed a
traditional wrongful dismissal analysis—as such, we don't
know whether courts will be comfortable with restitution awards in
future, similar cases.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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